Zorbas v Sidiropoulous [2009] NSWCA 111

New South Wales Court of Appeal

CITATION: Zorbas v Sidiropoulous [2009] NSWCA 111

HEARING DATE(S): 7 May 2009

JUDGMENT DATE: 7 May 2009

JUDGMENT OF: Hodgson JA at 1; Young JA at 11; Bergin CJ in Eq at 12

EX TEMPORE JUDGMENT DATE: 7 May 2009

DECISION: Leave refused to rely on the notice of motion filed on 21 April 2009.

CATCHWORDS: PROCEDURE – Appeal – Fresh evidence – Application by respondent – Need for notice of contention – Need for timely application.

LEGISLATION CITED: UCPR 36.16, 51.40, 51.51

CATEGORY: Procedural and other rulings

PARTIES: George ZORBAS (Appellant) Stephen SIDIROPOULOUS (Respondent)

FILE NUMBER(S): CA 40364/08

COUNSEL: D L GRIEVE QC/ M H SOUTHWICK (Appellant) Ms E COHEN/ D JARRET (Respondent)

SOLICITORS: Macquarie Lawyers (Appellant) Moscardo Lawyers (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 115307/08

LOWER COURT JUDICIAL OFFICER: Debelle AJ

LOWER COURT DATE OF DECISION: 3 October 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Zorbas v Sidiropoulous: Estate of Krierzis [2008] NSWSC 1041

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40364/08 SC 115307/08

HODGSON JA YOUNG JA BERGIN CJ in Eq

7 MAY 2009 George ZORBAS v Stephen SIDIROPOULOUS Judgment 1 HODGSON JA: There is before the court a notice of motion which was filed on 21 April, 2009 seeking orders that the respondent have leave to rely on certain additional evidence in the appeal. 2 The basis of the application is that the respondent alleges he did not attend at the hearing at first instance, and that accordingly evidence that he would wish to rely on was not presented to the first instance judge, because of threats which the respondent alleges were made to himself and his wife. 3 In my opinion, what is sought to be done by this evidence is to uphold the decision of the primary judge, which was favourable to the respondent, on grounds other than those relied on by the primary judge, and accordingly it is a matter that would have required a notice of contention under UCPR 51.40, which requires such a notice of contention to be put on 28 days after service of the notice of appeal. 4 The notice of motion itself is a notice of motion seeking that further evidence to be permitted in the Court of Appeal, and under UCPR 51.51, a notice of motion seeking that leave is to be made returnable on the return day, that is the return day specified in the notice of appeal. It may be that that particular rule is directed to appellants rather than to respondents; but in my opinion, if the further evidence is to be sought to be relied on, as it were to support a notice of contention, the notice of motion seeking to introduce that further evidence should be put on no later than the time limited for the notice of contention. 5 For those two reasons, therefore, in my opinion leave is required by the respondent in order that the respondent be permitted to rely on the notice of motion today, which is the day set down for the hearing of the appeal. 6 The factual matter sought to be relied on is something that might justify an order under UCPR 36.16(b), that is, the setting aside of an order made in the absence of a party. It seems to me that if what is sought to be relied on in the notice of motion is to be relied on at all, it would be more appropriately dealt with as an application under that rule by a judge of the Equity Division. 7 In my opinion the appropriate course for the Court to take is to refuse leave to the respondent to rely on the notice of motion in the Court of Appeal and to proceed with the hearing of the appeal. 8 If the Court is minded to allow the appeal and grant probate to the appellant, what I would propose is that at that time, the Court postpone the making of a final order to give the respondent an opportunity to bring an application under UCPR 36.16 in the Equity Division to set aside the primary judge's order which would, as a result of this Court's decision, have been shown to be in error. There may of course be powerful discretionary reasons why such an application would not be granted by the Equity Division, having to do with the lateness of the matter being raised; but in my opinion, it would not be appropriate for this Court to pre-empt and exclude the possibility of that application being brought. My present view is that that possibility would not prevent the Court finally disposing of the costs of the appeal, but would justify postponing an order that finally dealt with the substance of the case. 9 If this Court were to allow the appeal and order a new trial, the respondent would in any event be able to seek to lead the additional evidence at that new trial. 10 So for those reasons and on that basis, I would propose that leave be refused to rely on the notice of motion. 11 YOUNG JA: I agree. 12 BERGIN CJ in Eq: I agree. **********